We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Landmark ruling on test to be applied when considering whether the living arrangements of the mentally incapacitated amount to a deprivation of liberty

Does the concept of physical liberty mean the same thing for everyone, when considering whether living arrangements amount to a deprivation of liberty, or do those with disabilities have limited rights? Does it make a difference whether the arrangements are comfortable and considered to be in the person’s “best interests”? These were fundamental questions considered by the Supreme Court in the recent cases of P & Q (by the Litigation Friend, the Official Solicitor) v Surrey County Council (2014) UKSC 19 and P (by his Litigation Friend, the Official Solicitor) v Cheshire West & Chester Council & Another (2014) UKSC 19.

The facts

The case of P & Q concerned two sisters. One of the sisters had a learning disability and also had problems with her sight and her hearing. The other sister had a learning disability, possible autistic traits, and exhibited challenging behaviour. Both sisters lived with their mother until 2007, when they were removed from their home, following allegations of sexual abuse made against various family members.

At the time of the final care proceedings hearing in 2010, the first sister was 18 and living with foster carers. Her foster mother provided intensive support. The sister had never attempted to leave the home and showed no wish to do so. However, had she attempted to leave, the foster mother would have restrained her.

The second sister, then 17, was transferred from foster care to a specialist residential home, due to her aggressive outbursts. Sometimes she required physical restraint and tranquilising medication.

The Cheshire West case involved a man who was born with Cerebral Palsy and Downs Syndrome. He required 24 hour care to meet his personal care needs. Until the age of 37, he lived with his mother. However, when her health deteriorated, he was transferred to supported living accommodation, which he shared with two other residents. He received a high level of support with day to day activities. Restraint was required when he exhibited challenging behaviour.

The decision of the Court

The Court of Appeal concluded that, in both cases, the living arrangements did not involve a deprivation of liberty.

The Supreme Court had no hesitation in overturning the above decision, and concluded that all three persons were being deprived of their liberty. This was in spite the fact that no criticism had been raised about the living arrangements of any of the parties involved. Indeed, the arrangements were thought to be in the “best interests” of those involved.

In reaching its decision, the Supreme Court concluded the following:

It goes without saying that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It might be that those rights have to be limited or restricted at times because of their disability. However, the starting point should be the same for everyone.

Far from a disability entitling the state to deny such people human rights, it places upon the state (and upon others) the duty to make reasonable accommodation to cater for special needs.

Those rights include the right to physical liberty, which is guaranteed by Article 5 of the European Convention of Human Rights. The fact that living arrangements are comfortable, and make the person’s life as enjoyable as possible, is not material to the issue of whether they are deprived of their liberty.

Three components form the essential character of a deprivation of liberty. This includes the following:

confinement in a particular restricted place for a not negligible length of time. This is to be assessed objectively. It is relevant to consider whether the person is under continuous supervision and control by others, and whether they are free to leave their residence;

lack of valid consent. This is assessed subjectively; and

attribution of responsibility to the state.

What are the implications of this decision?

The above decision redefines the test to be applied when deciding whether a person, who lacks capacity to make decisions about their own care arrangements, is being deprived of their liberty. The judgment applies equally to the older person in a care home. If deprived of their liberty, the person is entitled to procedural safeguards. In particular, their deprivation has to be authorised, either by the Court, or by the use of DOLS (Deprivation of Liberty Safeguards). The Mental Capacity Act 2005 sets out a complex system of safeguards to ensure that a person is not arbitrarily deprived of his or her liberty in hospital, or in a care home. They are detailed and by no means straightforward.

As the DOLS procedure only applies to hospitals and care homes, an application to the Court of Protection for specific authorisation for deprivation of a liberty will be necessary for any affected person within a supported living arrangement or shared life scheme. There is a risk that the decision of the Supreme Court could result in the Court, local authorities and NHS Primary Care Trusts being flooded with requests to authorise a deprivation of liberty. The Department of Health is understood to be drafting urgently needed new guidance.

Compare jurisdictions: Arbitration

“As in house counsel for a medium sized NZ group of companies, I find the newsfeeds very useful as they keep me up-to-date with the latest legal info in areas I have subscribed for. The quality is very good and I would not hesitate to recommend to colleagues.”